CITATION: Bakmazian v. Iskedjian, 2015 ONSC 7493
COURT FILE NO.: FC-14-1694 (Ottawa)
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Bakmazian
Applicant
– and –
Michael Iskedjian
Respondent
Jeffrey Behrendt, counsel for the Applicant
Virve Georgeson, counsel for the Respondent
HEARD: November 24, 2015
LALIBERTE, J.
RULING ON MOTION
INTRODUCTION
[1] The Court is dealing with Motions brought by both parties.
[2] The Applicant seeks the following relief in her November 18, 2015 Notice of Motion:
− An interim order for spousal support;
− Retroactive spousal support payments as of December 1, 2012;
− Order requiring the Respondent to designate her as beneficiary of a policy of life insurance;
− Costs.
[3] The Respondent’s Notice of Motion dated August 14, 2015 requests:
− An order separating the claim for a divorce from the corollary issues;
− An order whereby the Court would find that the Respondent has provided full disclosure and prohibiting any further request for disclosure; any request for disclosure must particularize the items sought;
− A temporary order for spousal support in the amount of $695 per month payable to the Applicant by the Respondent.
[4] The Court rules as follows on each of the distinct issues raised in the Motion:
Severance of the Claim for Divorce
[5] The Respondent is asking the Court to sever the claim for divorce from the corollary issues. His view is that the Applicant has unsuccessfully attempted to set out a basis to claim spousal support. His counsel indicates that he wishes to “get on with his life”.
[6] The Applicant opposes this relief on the basis that a divorce may result in her not qualifying for coverage as “spouse” under the Respondent’s workplace health and benefits plan.
[7] The Court was advised that the Respondent has not provided a copy of his health plan. It was requested in a letter sent to his counsel on May 24, 2015.
[8] The splitting of a claim for divorce from other issues is governed by Family Law Rule 12(6) which provides:
Rule 12(6) The Court may, on motion, make an order splitting a divorce from the other issues in a case if,
(a) neither spouse will be disadvantaged by the order; and
(b) reasonable arrangements have been made for the support of any children of the marriage.
[9] There is no claim in these proceedings for any child. The concern revolves around the effect of a divorce on the Applicant’s coverage under the Respondent’s health plan.
[10] The onus of establishing that the Applicant will not be disadvantaged by a divorce order rests with the Respondent. He has not provided a copy of his health plan. Therefore, he has not met his burden. The Court cannot find that the Applicant will not be disadvantaged.
[11] The end result is that the Respondent’s claim for severance of the divorce is dismissed.
Disclosure
[12] A review of the continuing record and endorsements by the Court reveals that disclosure has been an ongoing issue between the parties.
[13] On October 15, 2014, then Master Roger made a fairly comprehensive disclosure order directing both litigants to disclose financial materials.
[14] On April 2, 2015, the parties brought motions seeking disclosure of financial information. An order for disclosure from both was issued by Justice MacKinnon.
[15] On May 26, 2015, the Respondent would again bring a motion for disclosure against the Respondent. Master MacLeod’s endorsement indicates that the motion was resolved.
[16] The parties maintain not having received complete disclosure. In fact, counsel for the Applicant stated not having received 99% of the material to be disclosed per the requests and Court orders.
[17] The Respondent has attached a significant amount of documents to his August 14, 2015 affidavit. At paragraph 9 of his affidavit he states: “All disclosure that actually exists has been disclosed.”
[18] He adds: “…on the other hand, Ms. Bakmazian only provided partial responses to disclosure requested at the case conference and at the two motions…”.
[19] As already noted, counsel for the Applicant suggested that 99% of the disclosure as yet to be provided.
[20] In her November 17, 2015, affidavit, the Applicant’s position is that she has provided “all the disclosure requested by the Respondent.” She had provided him with releases allowing him access to all of her bank accounts.
[21] At paragraph 111 of her affidavit, she states that “…the Respondent has failed to provide significant disclosure.” She attached a copy of a letter sent to the Respondent’s counsel on May 24, 2015, setting out an inventory of the disclosure which had not yet been provided contrary to the April 2, 2015 order, which provided for disclosure within 30 days.
[22] The Court notes that the Respondent attached more than 300 pages of various financial documents such as financial statements, corporate income tax returns, proposal to creditors and various invoices.
[23] The Court cannot, on this record, decide whether the parties have provided full disclosure.
[24] The unfortunate reality is that this matter cannot move forward without a complete record of each litigant’s financial means and needs since their separation in November 2012.
[25] This is the fourth time the Court is asked to speak to the issue of disclosure. From counsels’ submissions, it would appear that the parties are no further ahead than when they first appeared before then Master Roger on October 15, 2014. It is therefore necessary for the Court to structure the question of disclosure.
[26] The Court makes the following order on the question of disclosure:
Each party shall diligently review the disclosure provided by the other party;
Once this review is completed, each party shall serve on the other party a list of items claimed to be missing from the disclosure; these items shall be clearly identified;
The list of items shall be served on the other party on or before January 15, 2016;
The items sought shall be disclosed by each party on or before January 31, 2016;
If any of the items sought will not for any reason be disclosed on or before January 31, 2016, a written explanation shall be provided to the other party; this explanation shall refer specifically to the item sought and shall be provided on or before January 31, 2016;
Once the parties have completed this process, either may bring a motion if unable to resolve issues relating to disclosure;
The materials generated by this process shall form part of the materials filed in the motion.
Retroactive Spousal Support
[27] The Applicant’s notice of motion claims retroactive spousal support payments as of December 1, 2012. The parties separated in November, 2012.
[28] In her November 17, 2015 affidavit, the Applicant states, at paragraph 117:
“117. Although we separated in November 2012, to date I have not received any spousal support despite repeated requests.”
[29] There are no particulars provided in this motion as to the “repeated requests” for spousal support made by the Applicant.
[30] In dealing with the question of suitability of a retroactive award for spousal support, the Supreme Court of Canada in Kerr v. Baranow 2011 SCC 10, [2011] 1 S.C.R. 269, stated the following at paragraph 207:
“207…I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.”
[31] Counsel for the Applicant agreed with the Court that the evidentiary record did not provide a basis for the Court to properly address the factors identified by the Supreme Court of Canada. He accordingly chose not to pursue his claim for retroactive spousal support at this stage.
[32] The Court will not make an order for retroactive spousal support in this motion.
Spousal Support
[33] The Applicant is claiming ongoing monthly spousal support in the amount of $5,613. This is based on the Spousal Support Advisory Guidelines. The Court is asked to set the Respondent’s income at $150,000 and the Applicant’s at $12,000.
[34] The Respondent argues that the Applicant is not entitled to any spousal support. However, he is prepared to pay $695 per month in order to assist her financially.
[35] The Applicant is 48 years old. The Respondent is 55. They were married on September 6, 1987 and separated in November, 2012.
[36] There are two adult children of the marriage, namely:
− Serge, born April 14, 1992;
− Sonia, born July 3, 1995.
[37] Sonia is registered as a full-time university student.
[38] Both parties paint a very different picture of their 25 year marriage.
[39] The Applicant describes their relationship as a “traditional marriage”. She explains that she is the one who raised the children while the Respondent worked on his career as a pharmacist, businessman and financial advisor. This meant a number of moves for the family. One such move was to Ottawa where she was alone with the children for about 1 ½ years.
[40] Other than assisting the Respondent in his ventures, she states having little work experience. Her affidavit evidence is that she has “…spent the entire marriage as a homemaker, and assisting the Respondent with his business in an administrative role.” While she was paid by the Respondent, she indicates that she never saw any money…he deposited her pay cheques and managed the funds.
[41] The Applicant summarizes her version by stating that she has given the best part of her life to supporting the Respondent, his career, and his business, his leadership role in the Armenian community as well as looking after the two children and the household.
[42] She describes her financial situation in very bleak terms. She attributes her lack of assets (nothing other than an RRSP worth $50,000) to the Respondent’s actions in forcing her to turn over all of her savings to him, borrow funds on his behalf and co-signing all his loans.
[43] The Applicant explains that the Respondent’s mismanagement of the family and business finances resulted in “…a mountain of debt that could not be repaid in full…”.
[44] On December 9, 2013, the Respondent filed a consumer proposal. The Applicant filed an assignment in bankruptcy on December 13, 2013 which shows $1,169,689.00 in liabilities.
[45] She alleges that shortly before separation, the Respondent forced her to obtain several credit cards. She would write cheques to him on the credit cards until the limit was reached. These cheques were cashed by him for his own use and business use.
[46] In support of her claim for spousal support, she has filed a letter dated May 29, 2015 from her doctor which confirms the following:
“I hereby confirm that due to her significant medical problems she has only been able to work on a part-time basis recently.
I furthermore recommend that she continue to work on a part-time basis in order not to aggravate her medical problems.”
[47] The notices of assessment filed by the Applicant reveal the following line 150 incomes since 2011:
− 2011: $3,610.00
− 2012: $85,615.00 (from RRSP)
− 2013: $51,198.00
[48] Her T1 General 2014 shows a total income of $23,076.91.
[49] In her November 17, 2015 affidavit she states that she was not working and not supporting herself at the time of the separation.
[50] She had no income until May 2013 when she obtained a contract position as an executive assistant with the federal government. She earned $48,000.00 per year. This contract ended in February 2014. Her health and lack of skills made it such that she struggled at this job.
[51] She then went on Employment Insurance which she received until October 16, 2014. She was unable to find employment as an assistant during that period.
[52] Her present source of income is from teaching piano. She indicates that she is focusing on building her piano teaching as it better suits her skills and health situation. She is not searching for other employment.
[53] She has provided a summary of income from teaching piano lessons since the separation. She estimates that she will earn approximately $12,000.00 in 2015.
[54] The Applicant’s evidence is that she is in desperate financial situation. She is residing rent-free with a girlfriend.
[55] The Respondent provides a significantly different history of how this relationship operated during their 25 years of cohabitation. His view is that this was not a “traditional marriage”.
[56] He describes the Applicant has spending “…much less time at home than a traditional wife would…” He notes the following:
− They decided not to have children for 5 years after the marriage;
− She worked as a salesperson;
− She was a “cosmetics manager: at a pharmacy purchased by him;
− She joined his consulting firm as “PR Manager” and had her own business cards under her maiden name;
− She was very active in music circles;
− The children were cared for in daycares and boarding schools;
− He took care of the children as much as the Applicant; he describes himself as having been very active with the children.
[57] He rejects the notion that he frustrated the Applicant’s opportunity to get paid for work or improve her education if she wished to. He encouraged her on many occasions to renew her career as a piano teacher. He provided her with guidance on how to market her business, the opportunity to learn business skills and organization and management skills at his business office.
[58] He opines that the Applicant is capable of earning upwards of $60,000.00 yearly teaching piano. His estimate is that she earned this amount in 2014. This is based on the number of students that were at a public recital in June 2014 and his knowledge of approximately how many lessons each student who is in an annual piano recital takes a week multiplied by the cost of these lessons. He had organized four previous recitals.
[59] The Respondent’s affidavit evidence suggests that he is in dire financial circumstances. He states living “from pay-check to pay-check” with the money earned from work. He has no credit cards, only debit cards. He indicates:
“Besides the monthly payment of $1,333 to a Bankruptcy Trustee (plus $20,000 trustee fees over 5 years) as part of the arrangement with his creditors through a Division 1 proposal, the defendant also owes family members over $150,000.00.”
[60] The Respondent attached statements from both adult children to his October 22, 2015 affidavit confirming that he has provided them with financial support.
[61] The 23 year old child, Serge, confirms the following amounts:
− April 1, 2014 to March 31, 2015: more than $6,500 towards car payments, car insurance, rent, health and beauty, food;
− 2014: $4,500 towards tuition fees;
− Since April 2015: more than $1,200 per month for car payments, car insurance, accommodation and utilities, legal fees, health and beauty, food.
[62] The 20 year old child, Sonia, indicates the following:
− February 1, 2014 to April 30, 2015: more than $7,500 for rent, university books, health and beauty, food;
− Since May 1, 2015: more than $600 per month for accommodation, university tuition and books, OSAP grant repayment, car related expenses, health and beauty, food.
[63] The Respondent states in his August 14, 2015 affidavit that “…he has a declining health.”
[64] A review of the financial documents filed by the Respondent since the start of the proceedings discloses the following:
October 3, 2014 financial statement
− His 2013 gross income from all sources was $27,133;
− His 2014 annual income is $116,100;
− Notice of assessment for 2011 (line 150) $17,905;
− Notice of assessment for 2012 (line 150) $128,157;
− Notice of assessment of 2013 (line 150) $13,622;
− August 9, 2014 year-to-year paystub shows $73,183.66.
March 18, 2015 affidavit
− December 13, 2014 year-to-year paystub shows $109,221.46;
− 2011 to 2013 balance sheets prepared by Chartered Accountant for Pharmideas Research & Consulting Inc. (corporation owned by the Respondent) net losses and year end deficits of $275,135 (2011), $515,179 (2012), $516,384 (2013);
− 6 invoices issued by Pharmideas Research & Consulting Inc. (c.o. Micheal Iskedjian and payable by Tac Group Inc. as follows:
• May 16, 2014: $ 488,16
• June 9, 2014: $ 867.84
• July 4, 2014: $ 569.52
• July 13, 2014: $1,084.80
• August 23, 2014: $ 488.16
• October 6, 2014: $ 433.92
August 14, 2015 affidavit
− 2012 financial statement for SAS Pharmideas Eupope which identifies a loss of $116,057.88; this was prepared by an accountant;
− T2 corporation income tax returns for 2011, 2012 and 2013 for Pharmideas Research and Consulting Inc; there is no taxable income in 2013.
[65] At paragraph 6, the Respondent states the following in regards to SAS Pharmideas Eupope:
− “…Activities of this company ceased in 2013 and the company was ordered to be liquidated by a French Court in 2014.”
October 29, 2015 affidavit
− U.S. income tax returns for Pharmideas USA Inc. for the years 2011, 2012, 2013 showing losses.
November 12, 2015 affidavit
− Corporate filing for Global Business Information Systems Inc. with Revenue Canada for the years 2012, 2013 and 2014; the Respondent’s evidence is that he is a 50% shareholder in this corporation indicates it is not presently active; the documents filed show losses for each year.
[66] In deciding the issue of interim spousal support in this matter, the Court is guided by the principles set out by Justice Chappel in E.D. v. D.D. 2012 ONSC 6689, [2012] O.J. No. 5586. At paragraph 24, he indicates the following:
“…The legislative criteria under the Divorce Act for granting temporary spousal support orders is identical to those relating to a final spousal support order. However, the following additional general principles apply in dealing with Motions for temporary spousal support:
The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.
The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self sufficiency is of less importance.”
[67] He states the following in regards to imputation of income at paragraph 32:
“32. The list of circumstances set out in section 19 provides a useful summary of when it may be appropriate to consider imputing income in spousal support cases. This list is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. The onus is on the party requesting the court to impute income to establish the grounds for this request.”
[68] It is therefore in the context of such contradictory evidence that the Court must decide the following issues:
Is the Applicant entitled to interim spousal support from the Respondent?
If she is entitled, what is the proper amount?
[69] Having considered all of the circumstances and the relevant principles, the Court finds that the Applicant has established that there is a triable (prima facie) case with respect to entitlement. Specifically, the Court has considered the following factors:
− The parties cohabited for a period of 25 years;
− It is at least arguable that this family unit focused mainly on the Respondent’s career; this is evidenced by the number of moves to accommodate his professional development;
− The circumstances were such that the Applicant’s work experience revolved around the Respondent’s various ventures;
− It is at least factually triable that the Applicant cared for the children while the Respondent perfected his education;
− The Court finds, on balance, that the Respondent is in need of financial assistance; her education and work experience is limited; she has medical issues which are confirmed by her doctor; the fact that the Respondent is willing to pay $695 per month is supportive of this proposition;
− The Court finds, on balance, that the Respondent is capable of paying spousal support; at a minimum he earns $110,000.00 per year.
[70] Therefore, the Court finds that the evidence raises a prima facie entitlement to spousal support for the Applicant based on both compensatory and non-compensatory factors.
[71] What then is the appropriate amount?
[72] In arriving at the appropriate amount, the Court must consider the condition, means, needs and other circumstances of each spouse. Interim support is meant to be in the nature of a “holding order”.
[73] Finding the appropriate amount in this case meets with a number of difficulties. Both allege that there hasn’t been full disclosure. The parties have been separated since November 2012 and there have been changes in their financial situation since. There have been significant financial difficulties as evidenced by the Applicant’s bankruptcy and the Respondent’s Proposal to Creditors.
[74] The Court is of the view that the proper amount rests on a balancing of the following factors:
− The Respondent earned at least $110,000.00 in 2014;
− The Respondent has paid $600 per month to the adult child, Sonia, who is entitled to support as she is a full-time student;
− The Respondent has paid more than $1,200 per month for the adult child, Serge, who is not a full-time student; while this is commendable, there is no legal entitlement to such support and is money available for spousal support;
− The spousal support will be tax deductible for the Respondent;
− While the Court is mindful of the Applicant’s personal circumstances, it is noted that she has a $50,000.00 RRSP and has shown to be capable of earning a reasonable income; the Court sets her yearly income at $20,000.00.
[75] The Court sets the spousal support payable by the Respondent to the Applicant, starting December 1, 2015 at $2,587.50.
[76] This amount was arrived at through the following formula:
Respondent’s income: $110,000.00
Less $7,200 support paid
by the Respondent for the
dependant child, Sonia: $ 7,200.00
$102,800.00
Applicant’s annual income $ 20,000.00
Difference in gross income
of the parties: $ 82,800.00
- As per the SSAG,
Court sets percentage
at 37.5%: $ 2,587.50 monthly
Applicant as Beneficiary of Life Insurance
[77] On consent of the parties, the Court orders that the Respondent designate the Applicant as the beneficiary of a policy of life insurance.
CONCLUSION
[78] Therefore, the Court makes the following interim orders:
The Respondent’s claim for an order severing the divorce from the other claims is dismissed;
The question of disclosure shall be structured as follows:
i) Each party shall diligently review the disclosure provided by the other party;
ii) Once this review is completed, each party shall serve on the other party a list of items claimed to be missing from the disclosure; these items shall be clearly identified;
iii) The list of items shall be served on the other party on or before January 15, 2016;
iv) The items sought shall be disclosed by each party on or before January 31, 2016;
v) If any of the items sought will not for any reason be disclosed on or before January 31, 2016, a written explanation shall be provided to the other party; this explanation shall refer specifically to item sought and shall be provided on or before January 31, 2016;
vi) Once the parties have completed this process, either may bring a motion if unable to resolve issues relating to disclosure;
vii) The materials generated by this process shall form part of the materials filed in the motion.
The Court makes no order for retroactive spousal support. This does not affect the Applicant’s right to such a claim;
Starting December 1, 2015, and on the 1st day of each subsequent month, the Respondent shall pay the Applicant monthly spousal support in the amount of $2,587.50;
This order shall be enforced by the Director of the Family Responsibility Office;
The Court makes a support deduction order;
The Respondent shall designate the Applicant as the beneficiary of a policy of life insurance;
The parties are asked to resolve the question of costs amongst themselves. If they are unable to do so, brief (maximum 3 pages) submissions should be exchanged and filed with the Court on or before December 21, 2015.
Justice Ronald M. Laliberte Jr.
Released: December 1, 2015
CITATION: Bakmazian v. Iskedjian, 2015 ONSC 7493
COURT FILE NO.: FC-14-1694 (Ottawa)
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Bakmazian
Applicant
– and –
Michael Iskedjian
Respondent
RULING ON MOTION
Justice Ronald M. Laliberte Jr.
Released: December 1, 2015